Employment terminated during the probationary period when the employee notified the employer of her pregnancy (TAS 259/2015, issued on 27 November 2015)
The Ombudsman for Equality was asked to determine whether a young woman working as a salesperson was discriminated against when her employment was terminated during the probationary period a week after she notified the employer that she was pregnant. The employer stated that the reason for termination was operational losses.
In its report, the employer explained that the employment contract was terminated because it was unclear as to whether an extension of the sales location rental agreement would be granted and the summer sales volume had been low. The employer also had reason to believe that the employee's performance played a role in the low sales volume, as the employee, according to the employer, had herself taken several leaves from work, among other things. However, two weeks after the employment contract was terminated, the above-mentioned rental agreement was granted an extension and an additional sales location was also opened. The employer hired three new salespersons, who, according to the shift schedule, rotated between the two sales locations. No work was offered to the terminated employee, because the employer recalled that she had refused to move to another sales location.
According to the employee's response, the low sales volume could not have had anything to do with rental agreement matters, but rather that the problem was that she had nothing to sell at the sales location during the summer. The product season was just beginning when she was let go. According to the employee, the claims of her taking leaves on her own initiative are not true, nor had she ever refused to move to another location.
As stated in the Equality Act: "The action of an employer shall be deemed to constitute discrimination prohibited under this Act if the employer:(...) gives notice on, terminates or otherwise discontinues an employment relationship, or transfers or lays off one or more employees on the basis of gender." The pregnant employee may not be terminated on the basis of her pregnancy or the decreased ability to work due to the pregnancy. Under the Equality Act, the burden of proof for showing that the terminated employee was not discriminated against lies with the employer.
The Employment Contracts Act (1(4)(4)) states that an employment contract may not be terminated on discriminating or otherwise inappropriate grounds with regard to the purpose of the probationary period. According to Government Proposal for the Employment Contracts Act (HE 157/2000 vp), the grounds for termination must be a reason attributable to the employee's person or their work performance. According to a standard interpretation, an employment relationship may not be terminated during a probationary period on production or financial grounds, such as operational losses.
Given the fact that the employer was aware of the employee's pregnancy, the Ombudsman for Equality believes that this case involves the presumption of discrimination in violation of the Equality Act. The problem with the rental agreement, which was claimed in the report, was short-lived and the agreement was renewed a couple weeks after the employee was terminated. The parties were also in disagreement as to whether the employee was terminated during the probationary period on grounds attributable to the employee. According to the employee, she had never received anything but praise for her work. The presumption of discrimination is also confirmed by the fact that the employer had recruited three new employees at almost the same time as the employee in question was terminated. Prior to this, the employer had claimed the reason for termination was operational losses and had not offered the terminated employee any work.